The romantic saying is that the eyes are the windows to the soul. This may be endearing to those searching for a soulmate, though the divorce rate suggests a coin toss would do just as well, but is it good enough for a judge to decide upon a term of years? Empirical evidence suggests not.
A famous experimental paradigm called “mind in the eyes” purports to demonstrate this ability. You are shown a photograph of a pair of eyes, accompanied by a short list of words that describe a mental state or attitude, such as irritated, sarcastic, worried and friendly. Then you are asked to pick the word that best matches the emotions the eyes express. My lab has confirmed that test subjects perform marvelously at this task, selecting the expected word more than 70 percent of the time on average, based on a study we conducted using over 100 test subjects.
Northeastern psych prof Lisa Feldman Barrett questioned this result.
My lab, however, has also discovered a hitch in this paradigm: If you remove the list of words and ask test subjects to “read” the eyes alone, their performance plummets to about 7 percent on average. The word list, it seems, acts as a cheat sheet that helps test subjects unconsciously narrow down the possibilities. People turn out to be quite bad at inferring emotions without context. This includes judges and juries.
From a distance, we believe in our mad skillz in reading other people from non-verbal cues. But believing we know what they’re really thinking isn’t the same as knowing. When we really know someone, enough to provide context to their cues, we may stand a good chance of reading them well. When we don’t, our chance of correctly imputing thought or emotion to their cues, their words, is slim.
And yet, much of our legal system is predicated upon the belief we can accurately gain insight into people’s heads by scrutinizing their demeanor, We know if they’re lying. We know if they’re sincere. We know if they’re remorseful. But what if that look, those eyes, are really telling us they’ve got gas and are trying desperately to hold it together as they stand before the court, sit on the witness stand.
Knowing a few judges well, there is little doubt that most want to do right. While what constitutes “right” is an open question, most are not the venal, or stupid, or selfish and lazy dictators they’re often seen to be. But judges, like every other person, fall prey to their inflated belief of their ability to “read” people. Some realize this, but also realize there isn’t much they can do about it. Their job is to make credibility determinations, whether at hearings, trials or sentences. That they have no magic skills to do so is a recurring gap in the system, but their job nonetheless.
Perhaps the biggest failing for the wise and well-intended judge is that recognizing these limitations, that they don’t really have a clue who is sincere, trustworthy, truthful, they go with the odds or their gut. They find the cop more credible than the defendant because that’s how they read the odds. They find the defendant with whom they can better relate to be more remorseful, and thus deserving of greater mercy at sentence. Or, to put it less gently, they punt, they succumb to in-group bias, and most importantly, they cover their ass.
After all, if you’re going to make a mistake, why make one that puts your position in jeopardy when the alternative will gain far greater acceptance and place a judge above scrutiny. The Federal Sentencing Guidelines are a perfect example.
For the last decade plus, since the Supreme Court’s 2005 decision in Booker, the guidelines have been advisory rather than mandatory. But most lawyers know the idea of “advisory” sentencing guidelines sounds great, but doesn’t always play out so well. With the opinion in Beckles v. United States, the Supreme Court keeps holding on to the fantasy that the guidelines are just advice, not rules.
Sentence a defendant within the Guidelines and no one will question whether the sentence is reasonable. Depart below and all hell can break loose. Depart and have a defendant commit a heinous crime after release and your face will appear on the cover of The New York Post. And not in a good way. Who needs that?
Except imposing a sentence on a human being, caging him for days, months, years, is a responsibility of monumental proportions. To the person, his family, his children, this destroys lives, futures and any chance for happiness and success. The ramifications are monstrously huge. And it’s based on a fallacy, a foundational assumption that judges have not only the magic power to know what number of years is the right number, but whether any variance within the range should be based on the sincerity of a defendant’s assertion of remorse to the court.
Nathan Burney twitted an MIT tech review post about Artificial Intelligence being used to set bail or release, My slightly snarky gut reaction was yes, but not because AI is such a great thing. Rather, because judges do such an awful job of it, “too chickenshit to do anything other than what the prosecutor asks them.” This is somewhat unfair to say, though not entirely untrue. We ask judges to do something no human being can do, then castigate them for doing it wrong.
Is AI, or more broadly, technology, the better answer? Hardly. It suffers from its own failties, from GIGO to insufferable glitches and failures. And by eliminating empirically sound but politically unacceptable truths from the calculus, it’s just another lie in which we want to believe.
But our expectation that judges and jurors can tell things about people from their demeanor, their testimony, their words, is no better. Science, the real stuff rather than the junk forensics allowed into trial daily because some judge somewhere shrugged and muttered, “whatever, I’ll allow it,” tells us that we do a lousy job of convicting the guilty. And so we continue to fill prison cells based on a series of beliefs that we know to be baseless.
It’s not for lack of desire to do the job right, to do “justice,” whatever that is. It’s that we’ve created a system based on little more than ancient beliefs in voodoo which we now know to be false. Yet, it remains good enough to destroy other people’s lives.